Support

A cookie is a piece of data stored by your browser or device that helps websites like this one recognize return visitors. We use cookies to give you the best experience on BNA.com. Some cookies are also necessary for the technical operation of our website. If you continue browsing, you agree to this site’s use of cookies.

Marketing Services

Bloomberg Next marketing services allow clients to elevate their brands and extend their reach through our established and trusted expertise, enhanced with engaging event production, appealing design, and compelling messaging.

Nov. 19 --In a Nov. 14 webinar titled “Amending the Federal eDiscovery Rules:
Fallout From the First Public Hearing,” moderator and Bloomberg BNA's Digital
Discovery and e-Evidence Advisory Board Chair Ronald J. Hedges led a discussion
on the proposed amendments to the Federal Rules of Civil Procedure and the
accompanying comments and hearing testimony. Thomas Y. Allman, Chair Emeritus
of the Steering Committee for the Sedona Conference® Working Group 1,
Magistrate Judge Craig B. Shaffer of the District of Colorado, and Kenneth J.
Withers, Deputy Executive Director of the Sedona Conference®, participated in
the discussion

Hedges posed the question, “looking at the logic and
experience test that helped drive the federal rules coming from case management
and case law under the 2006 amendments, have we seen the genesis for the
proposed amendments in the case law or case management, or are we looking at
broader themes?”

The panelists discussed the intended effects of the
amendments, as well as the anticipated practical effects they would have.

Changes to Rule 26 Garnered the Most Attention

Withers led the
discussion of the non-sanction related parts of the proposed amendments,
focusing heavily on the proposed changes to Rule 26, Duty to Disclose. Withers
explained the two biggest changes to Rule 26 are the addition of a
proportionality requirement to the definition of the scope of discovery in Rule
26(b)(1), as well as the deletion of the “reasonably calculated” language
regarding discoverable information.

Withers said there have been a lot
of comments that the “reasonably calculated” language omission is considered by
some to be a major change in the scope of discovery. He noted that for many
years, the practice has been to argue that the scope of discovery includes any
information that could be reasonably calculated to lead to admissible
discovery.

“But the actual language, and much of the case law that has
considered this explicitly, has noted that the scope of discovery is still
based on relevance,” Withers explained. “My personal view is this streamlined
definition does nothing to change the law.”

According to Withers, the
amendment makes the language a bit clearer that information sought must be
within the scope of discovery, and, in addition to being relevant, it must be
proportional.

Allman, who attended and testified at the first public
hearing on the proposed amendments on Nov. 7, weighed in on the comments to
Rule 26.

“Have no doubt about it, this is the single most vehemently
opposed provision of any of the proposed amendments,” Allman said. “Lawyers
whose clients have an asymmetric need for information argued over and over
again that the changes in 26(b)(1) would deny them discovery.”

Allman
said that the witnesses at the hearing argued that the changes unfairly shifted
the burden of proving discovery would be proportional to the plaintiffs.
According to Allman, when the advisory committee members asked the witnesses
how the amendments would shift the burden, the testifying individuals had a
difficult time giving an answer.

Withers noted the proportionality
calculus includes not only cost, but also the importance of the issues at
stake, the importance of the proposed discovery in resolving those issues, and
other factors.

“For instance, if the litigation is seeking an injunction
where there is no value in strict dollar terms, the calculation is not going to
be as simple as deciding what is the potential recovery versus the cost of
discovery,” Withers said. “It's going to be a far more nuanced calculation,
which the Sedona Conference® has addressed in its commentary on
proportionality.”

Hedges asked Judge Shaffer if he would be altering his
calculus in determining whether requested information was discoverable by
requiring parties to justify their requests.

“What will happen is that
lawyers will continue to litigate as they always have, and we will continue to
see discovery requests with boilerplate objections,” Shaffer said. “We have a
well-established line of cases that says a boilerplate objection, without some
supporting factual basis, is of no significance … What you may start to see is
that the lawyers who previously objected on the grounds that a request would be
overly broad or unduly burdensome will start to object on proportionality
grounds.”

Shaffer stated he did not believe the proposed change
materially altered the matrix the court must apply to evaluate the merits of a
particular objection. He noted that the changes to Rule 26 emphasize that
lawyers cannot continue to pursue discovery based on old habits, and that going
forward, the amendments force attorneys to take a more focused approach to
discovery.

Discovery Conferences, Limit Amendments Discussed

The lecturers also discussed the amendment to Rule 26(c), Protective Orders,
which, for the first time, includes the allocation of expenses as one of the
items a judge may order in modifying the terms of discovery. In addition, Rule
26(d) has been amended to allow parties to exchange discovery requests early,
before the 26(f) conference. According to the panelists, the intention in
allowing for these earlier proposals for discovery requests is to have a much
more complete 26(f) discussion of what the discovery plan will be.

Shaffer commented that a lawyer who takes full advantage of these proposed
revisions will be miles ahead of an opponent who continues to treat the 26(f)
conference as an administrative hurdle he must get over to commence litigation.
These proposed changes will be invaluable to attorneys who see the tactical
advantages of preparing for discovery early, Shaffer said.

Rule 26(f) has
also been modified to include specific mention of preservation and of Federal
Rule of Evidence 502. Rule 16 also would include a provision mentioning
preservation and FRE 502, and would, if approved, include a clause that would
allow a court to condition the filing of any discovery-related motion on a
conference with the court.

The lecturers also briefly discussed the
proposed limits in Rule 30, 33, 36, 4(m), and 16(2). Shaffer stated the Rule 30
presumptive limit of 10 depositions was likely dropped to five depositions in
an effort to send a signal consistent with some of the other proposed
amendments.

“We want lawyers and parties to be thinking about efficiency
and cost-effectiveness,” Shaffer said. “In big cases, parties will almost
certainly stipulate to more than five depositions, and the proposed rules allow
for that.”

Lecturers Tackle Amendments to 37(e)

The panelists
shifted the topic to the existing Rule 37(e), the proposed amendments to the
rule, and the comments elicited at the hearing and in writing.

Withers
led the discussion by stating the existing Rule 37(e), as amended in 2006, was
intended to protect the routine operation of electronic records information
systems so that companies and parties could operate defensible deletion
policies in good faith, knowing the courts would allow them to keep those
procedures in place.

“In reality, what happened was that most courts
zeroed in on the comment language 'good faith,' and held that all the
information systems would need to be turned off to avoid sanctions,” Withers
said. “Courts were essentially enforcing the parties to dramatically
over-preserve.”

In response, the 2010 Duke Panel convened to take a look
at 37(e) and propose an entirely new rule. According to Withers, the proposal
would ensure that compliance with the new rule would insulate parties from
sanctions, that sanctions would be warranted only if prejudice resulted, and
that the failure to use a litigation hold would be excused if the failure were
justified or harmless.

Hedges asked Shaffer if the new rule might
resolve the fear of over-preservation that several witnesses described at the
hearing.

“Under the new rule, the committee note makes clear that
preservation should be approached in a reasonable manner,” Shaffer said. “The
factors in 37(e) speak to that reasonableness.”

Shaffer noted that the
enumerated factors potentially pose the question of whether the committee is
intending by implication to suggest that if these factors are not met, then
that creates presumptive evidence of unreasonableness. However, Shaffer said he
did not believe the committee intended that consequence.

Hedges then
asked Allman to discuss the difference between a curative measure and a
sanction. Allman stated the curative measure can be implemented by judges
without having to demonstrate an enhanced culpability or any type of prejudice.
At the hearing, testimony indicated that many people wanted some requirement of
prejudice to be included in the curative measure definition, and many were
concerned that the differentiation between the two would shift the emphasis to
curative over sanctions.

The lecturers also addressed the language of
37(b)(ii), which provides a 'catch-all' for truly reprehensible behavior so
that it may be sanctioned if necessary.

“One of the not so clearly
identified goals of the rule-making is to write a rule that is so comprehensive
on spoliation topics that it will displace the inherent authority of the
courts,” Allman said. “The committee felt compelled to incorporate the
Silvestri exception that says some behavior is so heinous that it simply
is not fair to take sanctions off the table.”

But the hearing testimony
indicated concerns that the exception “risks swallowing the primary rule.”

Lastly, the panelists opined on whether or not the committee would
eventually define willfulness, which was a hot topic at the hearing. Allman
said he believed it would.

Future Hearings and Comments

The next
public hearing will take place on Jan. 9 in Phoenix. The final hearing will be
held on Feb. 7 in Dallas.

Comments on the proposed amendments can be
submitted by e-mail to Rules_Comments@ao.uscourts.gov,
or by U.S. mail to the following address: Committee on Rules of Practice and
Procedure Administrative office of the United States Courts, One Columbus
Circle NE, Washington, D.C., 20544.

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)